Geneva Mill Co. v. Andrews

• Decision Date: 08 February 1926
• Docket Number: No. 4537.,4537.
• Citation: 11 F.2d 924
• Parties: GENEVA MILL CO. v. ANDREWS.
• Court: U.S. Court of Appeals — Fifth Circuit

11 F.2d 924 (1926)

GENEVA MILL CO. v. ANDREWS.

No. 4537.

Circuit Court of Appeals, Fifth Circuit.

February 8, 1926.

Wm. H. Watson and S. Pasco, Jr., both of Pensacola, Fla., for plaintiff in error.

Philip D. Beall and John M. Coe, both of Pensacola, Fla., for defendant in error.

Before WALKER, BRYAN, and FOSTER, Circuit Judges.

BRYAN, Circuit Judge.

Andrews, plaintiff, recovered judgment for personal injuries sustained by him while he was in the employ of the Geneva Mill Company, defendant. The action was brought under the Florida Hazardous Occupation Act of 1913, which makes employers engaged in certain hazardous occupations, including "railroading," liable in damages for injuries to their employees, caused by the negligence of their other employees. Revised General Statutes of Florida, §§ 4971, 4972, 4973.

The declaration alleges that defendant was engaged in the hazardous occupation of railroading, and maintained a steam railroad for the transportation of logs in Walton county, Fla.; that as a part of the equipment of its railroad defendant operated and maintained a railroad car, known as a "skidder," by means of which logs were dragged from the woods to the railroad track, and also maintained another car, known as a "loader," by means of which the logs, after being handled by the skidder, were picked up and loaded upon other cars; that, at the time of his injury, plaintiff was employed by defendant in connection with the operation of the loader, which was located near the skidder. The act of negligence charged is that defendant, by its agents and servants in charge of the skidder, dragged a log of great size and weight against and upon plaintiff. Injury as a result of the act complained of was then alleged.

The District Court overruled a demurrer to the declaration, the principal grounds of which were that the declaration failed to allege that plaintiff was acting within the scope of his employment, and that the injury complained of was alleged to be due to the negligence of fellow servants. On the day plaintiff was injured, the loader and skidder were on the same spur track. There was attached to the skidder by a 40-foot "rooster" pole a water tank car, which was between the skidder and the loader, and about 60 feet from the latter. Plaintiff's duty was to take firewood from wood piles and elsewhere near the track and place it on the loader. The spur track extended in an easterly and westerly direction. During the day one of the skidder crew built a fire on the north side of the spur track, and within a few feet of the end of the tank car, next to the loader. Plaintiff stopped at this fire to warm his feet, and while he was there the skidder crew, by means of machinery on the skidder, pulled a log of unusual length from a point south of the spur track across the rooster pole, and then swung it around to place it in a pile of logs on the north side. The log was long enough to reach plaintiff, where he stood at the fire, and it struck and injured him as it was being put into place.

According to plaintiff's testimony he was at the fire long enough to be seen and warned, but he claims he received no warning. He was contradicted by one Myers, a member of the skidder crew, who testified that he had been at the fire a moment before, and was warned away by the operator of one of the drums used to handle logs. The operator of the drum and the flagman testified that they saw Myers and called to him to get out of the way. One theory of the defense is that plaintiff came to the fire the instant before he was injured, and that there was not time enough to give him a warning. At the conclusion of all the evidence, the trial court denied a motion to direct a verdict for defendant, and exception was duly taken.

The court charged the jury that there was a presumption of law that plaintiff's injury was due to the negligence of defendant's other employees, and that this presumption continued until defendant made it appear that it or its agents and servants, other than plaintiff, had exercised all ordinary and reasonable care and diligence. At the request of defendant the court charged that the jury were not authorized to presume negligence, but that the burden was on plaintiff to prove, not only the fact of the injury, but negligence also. At the conclusion of the whole charge defendant excepted to those portions of it which declare that there was a presumption of negligence, which the defendant was required to rebut. Defendant argued that the Hazardous Occupation Act did not relieve plaintiff of the burden of proving negligence, but the court replied that the statute seemed to him to apply the rule that the burden of proof was on defendant.

It is assigned as error that the court erred in overruling the demurrer to the declaration, in refusing to direct a verdict for defendant, and in charging the jury...